On February 1, 2017, a judge in the so-called Jimmo case ordered the Centers for Medicare and Medicaid Services (CMS) to enter into a Corrective Action Plan (CAP). The CAP requires CMS to provide more education about the addition of a coverage standard for maintenance therapy. That is, CMS is required to provide additional education to providers regarding the fact that improvement is not required in order to be eligible for Medicare coverage for skilled care in skilled nursing facilities (SNFs), home health agencies (HHAs), outpatient therapy centers and inpatient rehabilitation hospitals.

The latest ruling is based on a ruling in the Jimmo case on August 17, 2016, in which the Court found that CMS did not comply with part of the Settlement Agreement entered into in 2013 that required CMS to engage in a nationwide education plan regarding the revised standard of coverage. Advocates for Medicare beneficiaries in the case claimed that the educational campaign conducted by CMS "was so confusing and inadequate that little had changed." They concluded that the educational campaign to date had not been "adequate, timely, or complete." 

The ruling issued on February 1, 2017, therefore, requires CMS to conduct the following activities as part of its CAP:

• Develop a new web page dedicated to the Jimmo Settlement Agreement of 2013 that will include information on how claims should be handled and a simple explanation that improvement is not a criterion for coverage

• Publish a corrective statement that disavows a standard for therapy services that requires beneficiaries to show improvement in their conditions

• Post Frequently Asked Questions (FAQs) about the settlement

• Develop and implement a second training session for Medicare contractors and Medicare Advantage Plans and others that make coverage decisions, including claims processors and appeals judges

• Conduct a new national call to explain coverage for maintenance therapy to providers

According to the Court, these activities must be completed by September 4, 2017.

The parties also agreed that a statement that clearly rejects the requirement to show improvement in order to receive therapy services and endorses the appropriateness of therapy in order to help ensure that patients maintain their current conditions is an essential component of the CAP. Since the parties could not agree on the language of such a statement, the Court adopted the draft statement of Medicare beneficiaries and their advocates, which reads, in part, as follows: 

"The Centers for Medicare and Medicaid Services reminds the Medicare community of the Jimmo Settlement Agreement, which clarified that the Medicare program will pay for skilled nursing care and skilled rehabilitation services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline of deterioration (provided all other coverage criteria are met)."

The statement also says that under the maintenance coverage standard for both skilled nursing and therapy services, "skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient's current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided."

With regard to skilled therapy, the statement says that such services are covered when individual assessments of patients' clinical conditions show that skilled care is necessary to fulfill safe and effective maintenance programs.

Thus far, action on behalf of Medicare beneficiaries has been directed at CMS. After the additional educational campaign is completed in early September, advocates for patients may turn their attention to providers and take action against them, if they do not provide care to patients who do not show improvement, as described above.